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Family Ties: The Use of DNA Offender Databases to Catch Offenders' Kin

Published online by Cambridge University Press:  01 January 2021

Henry T. Greely ,
Daniel P. Riordan ,
Nanibaa' A. Garrison  and
Joanna L. Mountain
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Extract

“The sins of the fathers are to be laid upon the children.”

Just after midnight on March 21, 2003, a drunk stood on a footbridge over a motorway in a village in Surrey in southern England. After eight pints of beer, he was drunk enough to decide to drop a brick from the overpass into traffic to see if he could hit something; unfortunately, he was not so drunk that he missed. The brick crashed through the windshield on the driver's side of a truck. It hit the driver, Michael Little, in the chest, triggering a fatal heart attack. He stayed conscious long enough to pull the truck safely to the side of the road, thereby perhaps saving other motorists; then he died. The crime was widely publicized, as was the driver's role in preventing any further accidents.

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 34 , Issue 2 , Summer 2006 , pp. 248 - 262
Copyright
Copyright © American Society of Law, Medicine and Ethics 2006

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References

Shakespeare, W., The Merchant of Venice, III verse 1. It is perhaps revealing of Shakespeare's view of this maxim that it is said by Launcelot, the fool, to Jessica, Shylock's daughter, of whose marriage and conversion to Christianity the play approves. Although the term sounds Biblical, the King James version of the Bible at least does not refer to the “sins” of the fathers, but instead talks of the “iniquity” of the fathers. “For I the Lord thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me.” Exodus, 20:5. Similar sentiments are expressed in Exodus 32:7, Numbers 14:18, Deuteronomy 5:9, and Jeremiah 32:18. But see Ezekiel, 18:20 (“The son shall not bear the iniquity of the father, neither shall the father bear the iniquity of the son: The righteousness of the righteous shall be upon him, and the wickedness of the wicked shall be upon him.”)Google Scholar
This description of the case is taken largely from “The Sins of the Fathers,” The Economist (April 24, 2004); Bird, S., “M3 Brick Killer Tracked Through Relative's DNA,” The Times (London) April 20, 2004, at 11; Taylor, B., “Killer Who was Trapped by his Relative's DNA,” Daily Mail, April 20, 2004, at 25; Forensic Science Service Annual Report, 2004–05, at 9, available at <http://www.forensic.gov.uk/forensic_t/inside/about/annual.htm> (last visited February 22, 2006). One law review article describes the Harman case, though it does not analyze this kind of forensic search. See Henderson, S. E., “Nothing New Under the Sun? A Technologically Rational Doctrine of Fourth Amendment Search,” Mercer Law Review 56 (2005): 507–563, at 554–55. Other overlapping news coverage of the Harmon case includes Brookfield, J., “Trail-Blazing Use of DNA Evidence is Helping Police Beat the Criminals,” The Express, April 21, 2004, at 17; Clough, S., “World First for Police as Relative's DNA Traps Lorry Driver's Killer,” The Daily Telegraph, April 20, 2004, at 6; Twomey, J., “World First as New Technique Helps Track Down Yob,” The Express, April 20, 2004, at 15; Raif, S., “DNA Link Helped to Trace Killer,” The Journal (Newcastle), April 20, 2004, at 16; Williams, A., “Brick Killer Trapped by his Relative's DNA,” The Mirror, April 20, 2004, at 13; Cheston, P. and Mowling, R., “M3 Brick Killer Trapped by DNA Link in Family,” Evening Standard, April 19, 2004, at C5; Allen, N., “Pioneering Technique Used to Track Killer,” Press Association, April 19, 2004.Google Scholar
Almost all of the sources describe the person in the database only as a “close relative,” apparently because of legal protections for the relative's privacy. Taylor, , supra note 2. The Economist calls the two men brothers, which, given that Harman was twenty at the time and the “close relative” in the database was under thirty-five years old, seems most likely.Google Scholar
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Kansas authorities have not spoken much about their use of DNA in the BTK case, but several press reports indicate that they used a search warrant to a medical clinic to get tissue samples of the suspect's daughter. Moon, C., “Sides Trade Charges Over Abortion Records,” Topeka Capital-Journal, September 2, 2005, at C1; Simon, S. and Huffstutter, P. J., “Clues Were Clear but Slow to Add Up,” Los Angeles Times, March 6, 2005, at A1. At least one reputable newspaper reported, however, that the daughter voluntarily provided the DNA sample in order to clear her father. Davey, M., “Computer Disk Led to Arrest in Killings, Pastor Says,” New York Times, March 2, 2005, at A12.Google Scholar
This use of DNA databases is discussed in the second workshop held by the American Society of Law, Medicine & Ethics under a grant to study issues in forensic DNA. DNA Fingerprinting and Civil Liberties Project, Report of Workshop 2, available at <http://www.aslme.org/dna_04/work2/report.php> (last visited February 22, 2006). Although one of the authors of this paper is part of the grant and participated in the third workshop, neither he nor any of the other authors were involved in the second workshop. Discussion also appears in several published sources. The most extensive written discussion of the issues appears to be four pages in Williams, R. and Johnson, P., supra note 6, at 553–556. See the discussion in note 29, et. seq. See also, Williams, R. Johnson, P. Martin, P., Genetic Information & Crime Investigation: Social, Ethical and Public Policy Aspects of the Establishment, Expansion and Police Use of the National DNA Database (2004) at 108–110, availiable at <http://www.dur.ac.uk/p.j.johnson/.> (last visited March 10, 2006). The issue also receives several pages of discussion in Lazer, D. and Meyer, M. N., “DNA and the Criminal Justice System: Consensus and Debate,” in Lazer, D., ed., DNA and the Criminal Justice System: The Technology of Justice (Cambridge, MA: MIT Press, 2004): at 371, 374–76. See discussion in note 28. Another chapter in the same book discusses in two paragraphs the technology of sibling-sibling partial matches. Bieber, F. R., “Science and Technology of Forensic DNA Profiling: Current Use and Future Directions,” in Lazer, D., ed., DNA and the Criminal Justice System: The Technology of Justice (Cambridge, MA: MIT Press, 2004): at 47–48. A few other sources mention the possibility of such searches without any substantial analysis. Simoncelli, T. and Steinhardt, B., “California's Proposition 69: A Dangerous Precedent for Criminal DNA Databases,” Journal of Law, Medicine & Ethics 33 (2005): 279–291, at 284 (one paragraph discussing the possibility); Juengst, E., “I-DNA-Fication, Personal Privacy, and Social Justice,” Chicago Kent Law Review 75 (1999): 61–82, at 79 (one paragraph mention of the possibility); and Willing, , supra note 5. Cf. Buckleton, J. and Triggs, C. M., “Relatedness and DNA: Are we taking it Seriously Enough?” Forensic Science International 152 (2005): 115–119 (suggesting that when reporting match probabilities, the probability that a sample matches a sibling should routinely be included).Google Scholar
Crime scene DNA is also usually analyzed for another marker, called amelogenin, which has two different lengths in men and only one length in women, thus allowing the DNA sample to be sexed.Google Scholar
For ease of reference only, this article will refer to people in the Offender Index as “offenders,” even though at least some of them will be people charged with, but not convicted of, a crime.Google Scholar
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Since the passage of the Justice For All Act, in late 2004, federal law has authorized the states to submit DNA profiles to CODIS from a) Persons convicted of crimes; b) Persons who have been charged in an indictment or information with a crime; and c) Other persons whose DNA samples are collected under applicable legal authorities, provided that DNA profiles from arrestees who have not been charged in an indictment or information with crime, and DNA samples that are voluntarily submitted solely for elimination purposes shall not be included in the National DNA Index System. Pub. L. 109–405, § 203(a)(1). The FBI can also put into the index records that are “(2) analyses of DNA samples recovered from crime scenes; (3) analyses of DNA samples recovered from unidentified human remains; and (4) analyses of DNA samples voluntarily contributed from relatives of missing persons.” 42 U.S.C. § 14132(a) (2006).Google Scholar
The FBI also maintains a “population file” of anonymous genotypes used in determining the significance of any match.Google Scholar
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FBI CODIS webpage, Investigations Aided, available at <http://www.fbi.gov/hq/lab/codis/aidedmap.htm> (last visited February 22, 2006). This number may well be overstated; it is not clear how seriously the DNA analysis must assist the police in order to be counted as an aid to an investigation. For a fuller discussion of this topic, see in this issue, Bieber, F., “A Home Run or Just a Base Hit? Measuring and Improving the Efficacy of Forensic DNA Databank Programs,” Journal of Law, Medicine & Ethics 34 (2006): 222–233.Google Scholar
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There is some uncertainty in determining the length of an STR; a person who matches perfectly on twenty-five out of twenty-six markers and just misses matching on the last allele may really be a perfect match with the length of one allele misread on either the crime scene sample or in the analysis entered into the database.Google Scholar
These and subsequent calculations concerning the number of matching alleles were performed by co-author Riordan with assistance from co-authors Mountain and Garrison. A scientific article setting out these calculations in more detail is in preparation.Google Scholar
These odds vary depending on ethnicity. For most ethnicities in the United States, the odds are about 1 in 2,000; for Navajo, the odds are about 1 in 300.Google Scholar
It is also possible that crime scene DNA might show partial matches to genotypes of two offenders who are known to be related to each other. This could make the probability much higher that the crime scene DNA came from someone in their family. We have not calculated the extent of the increased probability, but it seems likely, in some cases, to be substantial.Google Scholar
This excludes identical (or “monozygotic”) twins, who will necessarily share all twenty-six alleles.Google Scholar
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The British materials refer to a cost of £5,000 for a familial search, but this is not the cost but the price – the price charged to the police by the Forensic Science Service to run the search.Google Scholar
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It would, however, be possible to prove that they did not share the same mother, using an analysis of mitochondrial DNA, which descends only from the mother. If both putative siblings were male, it could also be possible to prove that they did not have the same father, using an analysis of their Y chromosomes, which come only from fathers and go only to sons.Google Scholar
Williams, and Johnson, , supra note 6, at 555. For another perspective on this issue of familial searching and families, see in this issue, Haimes, E., “Social and Ethical Issues in the Use of Familial Searching in Forensic Investigations: Insights from Family and Kinship Studies,” Journal of Law, Medicine & Ethics 34 (2006): 263–276.Google Scholar
Nevertheless, they are able to quote the custodian of the British DNA database as saying, “in a public meeting of the Human Genetics Commission held in February 2004 that ‘[Familial searching] is based on some very important assumptions that criminality can run in families, that a relative could be on the database, the families tend to live in the same area, and that offenders tend to offend close to their homes or in areas that they frequently visit.’” Id. (emphasis added). That statement can only be true in the very weak sense that such testing requires an assumption that it is possible that two members of the same family could both commit crimes – hardly a troubling position.Google Scholar
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Willing, , supra note 5.Google Scholar
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Willing, , supra note 5. It is not clear on what privacy law Callaghan based that assertion. The statute authorizing the creation of the Offender Index allows the use only of information maintained by federal, state, or local agencies “pursuant to rules that allow disclosure of stored DNA samples and DNA analyses only (A) to criminal justice agencies for law enforcement identification purposes,” among other purposes. 42 U.S.C. § 14132(b)(3)(A) (2006). The statute directly regulating CODIS and the Offender Index, in the provisions entitled “privacy protection standards,” expressly allow “the results of DNA performed for a federal law enforcement agency” to criminal justice agencies for law enforcement identification purposes.” 42 U.S.C. § 14133(b)(1) (2006). Furthermore, nothing in the statutes authorizing mandatory collection of DNA from federal offenders, 42 U.S.C. § 14135a (2006), or District of Columbia offenders, 42 U.S.C. § 14135b (2006), appears to limit the use of those samples for partial match searches. The portion of that statute entitled “privacy protection standards” merely restricts their uses to those authorized by the collection statutes and expressly permits their use under circumstances where CODIS samples may be used, cross-referencing 42 U.S.C. § 14132(b)(3). It is possible that Callaghan is construing “law enforcement identification purposes” to be limited to cases where there is an exact, and hence (almost) perfectly identifying match, but that seems strained. He may be referring to other federal privacy statutes, although the Federal Privacy Act, for example, contains a general authorization for disclosure for law enforcement purposes. 5 U.S.C. § 552a(b)(7) (2006). It is impossible to analyze Callaghan's claim fully without more information about it. In any event, it does not sound as though Callaghan is asserting that state law enforcement officials cannot perform family searches of the Offender Database.Google Scholar
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